United States District Court, E.D. Wisconsin
RONDALE D. TENNER, Plaintiff,
SHERRIFF DAVID CLARKE, Defendant.
Stadtmueller, U.S. District Judge
who is incarcerated at Green Bay Correctional Institution
(“GBCI”), filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). This matter comes before the Court on
Plaintiff's motion to proceed in forma pauperis.
(Docket #2). Plaintiff has been assessed and paid an initial
partial filing fee of $10.67. 28 U.S.C. § 1915(b)(4).
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
1915A(a). The Court must dismiss a complaint or portion
thereof if the prisoner has raised claims that are legally
“frivolous or malicious, ” that fail to state a
claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief.
Id. § 1915A(b). A claim is legally frivolous
when it lacks an arguable basis either in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Gladney v. Pendelton Corr. Facility, 302 F.3d 773,
774 (7th Cir. 2002). The Court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327;
Gladney, 302 F.3d at 774. “Malicious, ”
although sometimes treated as a synonym for “frivolous,
” “is more usefully construed as intended to
harass.” Lindell v. McCallum, 352 F.3d 1107,
1109 (7th Cir. 2003); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts; his
statement need only “‘give the defendant fair
notice of what the. . .claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘formulaic recitation of the elements of a cause
of action will not do.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a
complaint must contain sufficient factual matter, accepted as
true, “‘that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give Plaintiff's pro se
allegations, “‘however inartfully pleaded,
'” a liberal construction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
alleges that he was temporarily housed at the Milwaukee
County Jail (the “Jail”) from January 18 to
January 23, 2018 in order for him to attend court proceedings
in Milwaukee. (Docket #1 at 2). On or around January 20, the
toilet broke and “overflowed with urine and
feces.” Id. He complained about the problem to
a correctional officer sometime during the first shift.
Id. The officer, whose last name is Jackson, said he
would email the Jail's plumber. Id. Plaintiff
asked to be moved to a different cell at this time but was
refused even though vacant cells were available in the same
housing unit. Id. at 3.
reports that he became ill as a result of these unsanitary
conditions. Id. Further, he was unable to use the
toilet or maintain his hygiene because the water in the cell
had been shut off. Id. He asked to speak with a
supervising officer in the housing unit and was seen later
during the second shift on January 20 by another correctional
officer, Velez. Id. Velez informed Plaintiff that
all he could do to address the issue was to contact the
maintenance department. Id.
that day, Plaintiff slipped and fell in the feces on the
floor of his cell. Id. This prompted him to again
ask for a change of cell. Id. A third correctional
officer, Williams, spoke with Plaintiff and told him she
would email the plumber. Id. Plaintiff does not
report when, if ever, the plumber fixed or attempted to fix
the toilet. See Id. He does allege that he was
forced to endure these conditions for three days, apparently
until his transfer back to GBCI on January 23. See
Id. Plaintiff was seen in the health services unit at
GBCI on January 29 for treatment of the illness he developed
because of the unsanitary conditions at the Jail.
does not identify what claims he seeks to assert based on
these facts. The Court can discern only one potential claim:
inadequate conditions of confinement, in violation of the
Eighth Amendment. A conditions-of-confinement claim requires
the plaintiff to prove that a prison official displayed
deliberate indifference to conditions “sufficiently
serious” so as to constitute “‘the denial
of the minimal civilized measure of life's
necessities.'” Townsend v. Fuchs, 522 F.3d
765, 773 (7th Cir. 2008) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)). Of course, “provid[ing] a
maximally safe environment, one completely free from
pollution or safety hazards, ” is not required by the
Constitution. Caroll v. DeTella, 255 F.3d 470, 472
(7th Cir. 2001). But at this early stage, the Court finds it
appropriate that such a claim may proceed on Plaintiff's
the Court must amend Plaintiff's complaint sua
sponte as to naming the proper defendants. Plaintiff has
not named as defendants Jackson, Velez, and Williams, the
correctional officers involved in the relevant events.
Instead, he has only named David Clarke
(“Clarke”), the former Milwaukee County Sheriff.
Although Clarke oversaw the Jail's functioning at a high
level, he cannot be liable under Section 1983 simply because
he supervised employees who committed misconduct absent some
allegation that he condoned it or turned a blind eye toward
it. Pepper v. Vill. of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005); Sanville v. McCaughtry, 266 F.3d
724, 740 (7th Cir. 2001); Brokaw v. Mercer Cnty.,
235 F.3d 1000, 1012 (7th Cir. 2000). There is no suggestion
that Clarke ever knew about Plaintiff's plight or ignored
an opportunity to rectify it, and so the Court must dismiss
Clarke as a defendant. It will substitute in the three
individual correctional officers on Plaintiff's behalf.
Fed.R.Civ.P. 21 (“On motion or on its own, the court
may at any time, on just terms, add or drop a party.”).
Plaintiff should use the discovery tools available to him to
identify these officers by their first names.
reasons stated above, Plaintiff will be permitted to proceed
on a claim of inadequate conditions of confinement, in
violation of the Eighth Amendment, against Defendants
Jackson, Velez, and Williams. 28 U.S.C. § 1915A(b).
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
IS FURTHER ORDERED that Defendant David Clarke be
and the same is hereby DI ...